Unfortunately discrimination in the workplace has not been confined to the annals of history. If you are an employer or you find yourself subject to discrimination it is important to know your rights and how the law can offer protection.

Discrimination and the law

The Equality Act 2010 (EA 2010) protects individuals in respect of nine characteristics. These are known as ‘protected characteristics’ and are attributes of an individual that the law seeks to protect.

Gender reassignment is one example. Section 7(1) of the Act says that a person has the protected characteristic of gender reassignment if they are "proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex."

In practice, this means that if an individual’s gender identity does not match the gender they were assigned at birth and they begin the process of aligning their life and physical identity to match their gender identity - referred to as transitioning - then the legal protection applies.

Protection in the workplace

Discrimination for gender reassignment - and the other eight protected characteristics - is prohibited during all stages of the employment relationship from recruitment through to dismissal. The law recognises discrimination in four categories: direct discrimination, indirect discrimination, harassment and victimisation, which we will look at in turn.

Direct discrimination

An employer treats a transgender individual less favourably than it treats others who are not transgender.

Example: A receptionist informs their employer that they are transitioning to a transgender man. As a result, he is demoted to a role without client contact. The employer increases his salary to counter the loss of job status. Despite the pay increase, the demotion would still constitute less favourable treatment because of gender reassignment. 

Indirect discrimination

An employer makes a provision criterion or practice (a ‘PCP’) such as a change to selection criteria or company policies, which applies to every employee regardless of characteristics but has the effect of disadvantaging trans individuals. 

Example: An employer starts an induction session for new staff with an icebreaker. Everyone is required to provide a school picture of themselves. One worker is a transgender man who does not wish his colleagues to know. He does not bring a photo and the employer criticises him in front of the group.

Harassment

An individual engages in unwanted conduct related to gender reassignment and that conduct has the purpose or effect of violating a trans individual’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment.

Example: A trans woman is undergoing a transition process. She works as a receptionist at a massage sauna targeting male clientele. Her employer requires her to attend work presenting as a man and to be addressed with a male name, feeling male customers might object to the presence of a woman. Such requirements would be unwanted conduct.

Victimisation

An employer subjects a trans individual to a detriment because they have done, intend to do, or are suspected of doing or intending to do, a ‘protected act’. Examples of protected acts include raising a grievance or bringing a tribunal claim.

Example: Being disciplined after raising a grievance to management of unlawful discrimination.

It is obvious from these examples that discrimination remains a very relevant topic. Sometimes even innocent actions by employers can result in unintentional discriminatory behaviour. If you are an employer or an employee concerned about discrimination in the workplace, please contact Helena Oxley